PRABHAKARAN Vs. A I RANJINI

JUDGEMENT

(1.) This C.M. Appeal has not been numbered, as according to the Registry, the appeal is not maintainable. Since the appellant insisted that the appeal is maintainable, the matter was referred to us. We heard the learned counsel for the appellant and learned counsel for the respondents, who appeared before the learned single Judge.

(2.) The appellant herein filed the suit for getting a share of the property from the partners in the management of the school. The persons who are entitled to get share were impleaded in the suit. Education Department was also impleaded. The Trial Court passed a preliminary decree recognising the right of the appellant. The appellant has filed an application for final decree, which is pending. An appeal was filed against the preliminary decree as A.S. No. 384 of 1998, which is pending before a learned single Judge and there was an order of stay by the learned single Judge staying the passing of the final decree. According to the appellant, a Commissioner has been appointed and the Commissioner filed a report in the final decree proceedings. Respondents 1 to 3 in the appeal then filed a petition for impleading them in the appeal. That application was allowed. Thereafter, the persons impleaded filed C.M.P. No. 4046 of 2001 for transposing them as appellants as according to them, the original appellant has filed a suit claiming the same benefits as the present appellant in the C.M.A. has sought and hence, according to respondents 1 to 3 the appeal will not be prosecuted by the appellant. Hence, they prayed for transposing them as appellants. This was objected to by the present appellant. Learned single Judge, by order dated 27.11.2001 allowed CMP No. 4046 of 2001 holding that since the appellant has filed a fresh suit, the apprehension that the appellant has practically abandoned the appeal seems to be correct. It is this order that is sought to be challenged in this appeal.

(3.) The appellant has invoked S.5(ii) of the Kerala High Court Act (hereinafter referred to as the Act). S.5(ii) of the Act is as follows: